(Image: Tom Red/Private Media)

Very few people are willing to say they are anti-vaccination per se, although there’s no law or moral code against being so. Vaccination is just a tool of public health. You can object to bike helmets because they mess up your hair, but being part of a society includes accepting that if the law says you have to wear one for the greater good, you do.

Vaccination is a harder question because it is medically intrusive. However, there’s no universally recognised human right that overrides the social principle that may dictate vaccination if that’s what is necessary.

Necessity is where we’re getting tangled on COVID vaccination, because we simply don’t know if it’s necessary or not.  Unfortunately we’re not having the conversation that would provide a clear answer, which is essentially a pragmatic one based on the best available science. Instead we have opposed views which call on incompatible rights (my right to not get COVID, your right to not get vaccinated). 

That way lies disaster, as exemplified by Jennifer Kimber and the Fair Work Commission. Kimber, a receptionist at an aged care facility in New South Wales, refused to get an influenza vaccine when that became mandatory for aged care workers last year, and was sacked. 

The FWC upheld that outcome, but deputy president Lyndall Dean dissented. The case did not involve COVID vaccination, except to the minor extent that Kimber had also belatedly indicated she might not want to get that either, reinforcing the opinion of the FWC majority that she actually “holds a general anti-vaccination position”. And making her reinstatement pointless, because COVID vaccination is now also mandatory for aged care workers.

Although the case wasn’t about COVID, Dean decided this was as good an opportunity as she was going to get to write 84 paragraphs into her dissenting decision about what she described as “the introduction of a system of medical apartheid and segregation in Australia”. And she went for it.

Dean is not anti-vax, apparently, but she sure isn’t pro-vax either. Her concerns are couched in the language of human rights (such as article 7 of the International Covenant on Civil and Political Rights, which provides that “no one shall be subjected without his free consent to medical or scientific experimentation”).

Whoa. Experimentation? Yes, because the Therapeutic Goods Administration has only ever given provisional approval to the COVID vaccines, which means by definition that they are still experimental and WE ARE ALL PARTICIPATING IN A CLINICAL TRIAL (OK, she didn’t capitalise that bit but it does jump off the page).

To underline which territory we’re in here, there’s a reference to the “Nuremburg code, formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII”.

Next: can employers mandate COVID vaccination on workplace health and safety grounds? No. Why? Because the only risk is from people who have COVID:

There is no risk associated with a person who is unvaccinated and does not have COVID …

Employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.

As for the legal validity of the public health orders, made by state government ministers under legislation, again no:

[Public health orders] cannot lawfully be used in a way that is punitive, and human rights are not suspended during states of emergency or disaster. The current PHOs have moved well past the minimum necessary to achieve public health aims, and into the realm of depravation.

Her word, not mine. Depravation: the state of being depraved or degenerated.  

That the governments have gone too far is illustrated by references to the 17,385 people who died in Australia with influenza or pneumonia in 2019 (footnote: only 600 or so died of those diseases); and in the same year, there were 4344 paedophiles on the NSW child protection register who don’t “have to declare that they are paedophiles before entering a business”.  

Also: anyone who dismisses an employee or refuses entry on the basis of COVID non-vaccination will breach the Disability Discrimination Act. Quoting as her reference an article in The Spectator by a retired solicitor, Dean repeats an entirely incorrect interpretation of that law to support her case.

Her final comments are epic. Vaccination mandates “are not measures to protect public health” and “do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test.”  

Well, not quite. According to the Royal Australian College of General Practitioners, studies have shown a correct positive rate of 40% to 74% in people without symptoms, meaning a pretty substantial proportion of false negatives are likely with rapid antigen tests.

Not that Dean is necessarily wrong about her concerns (apart from the disability discrimination part), although her excursion through most of the tropes of the anti-vax school don’t help her cause in my view.

The problem is that the refusal by governments to address the practical question of mandatory vaccination and legislate the solution (whatever that is) continues to leave the field wide open to crackpots and enthusiasts — and to a judicial officer who has been itching to lay out her thesis, despite its irrelevance to the question she was commissioned to answer. 

Random think-pieces and arbitrary decisions are no way to address the biggest public health question in our history.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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